B.C. Lawyers Ignored the Law in Their Case Against Trinity Law School

Let me recap the recent special meeting of the members of the Law Society of British Columbia, a meeting prompted by a motion from Victoria lawyer Michael Mulligan who sought to overturn the 20-7 decision of the governors (benchers) of the Law Society, who had approved the admission of future Trinity Law School students as articling students in B.C.

When the meeting began at 12:30 pm on June 10 Law Society President Jan Lindsay announced that just over 1,200 lawyers were present and a quorum was established. Family law lawyer barbara findlay (lower case is how she spells her name) moved the motion and made a passionate speech urging members to vote in favour of the motion.

Her speech was nothing short of brilliant as she referenced her struggles as a lesbian woman grappling with earlier laws that denied gays, lesbians and transgendered persons basic human rights. She did not mince words, she argued that during the time, not that many years ago, when homosexuality was labeled a mental illness, she had spent time in a mental institution, all because she was a lesbian.

Ms. findlay has been a friend and colleague of mine for many years. Recently when Canada passed laws permitting non-resident same-sex spouses to come to Canada to be divorced, if the American state they lived in would not divorce them and if they had married in Canada, she and I collaborated on several of the first cases to be heard in Canada. She had clients seeking this relief, as I did, and we compared professional notes in our efforts to serve our respective clients.

I don't know if barbara knows I am a practicing Christian, but I know she knows that I would never skirt my duty to my clients or to the rule of law because of my religious beliefs. After all, the Bible tells us to "Render unto Caesar what is Caesar's and render unto God what is God's", the ultimate statement on the intersection of Christianity and secular authority. When Jesus spoke these words the lawyers and Pharisees "marveled" at his wisdom.

Other lawyers speaking in favour of the motion also focused on the historical travesties visited upon gays and lesbians, one even referenced the Holocaust.

A bencher who had voted against Trinity published an article before the June 10 debate comparing the segregation of African-Americans in America's southern states to his opinion of the inevitable result of Trinity's community covenant which disallows sexual relations between unmarried spouses or married same-sex spouses.

Lawyers arguing against the motion, seeking to endorse the bencher's earlier decision, could not match the often inflammatory rhetoric of their impassioned colleagues.

These lawyers argued the law. They reminded the members that B.C's Human Rights Code specifically exempts religious groups. They confirmed that Canada's Charter of Rights and Freedoms does not apply to a private educational institution, its purview of protection is against fundamentally unfair governmental action.

They relied on the Supreme Court of Canada's earlier decision in Trinity Western University v. B.C. College of Teachers where the Teacher's College tried to block Trinity-educated teachers from becoming members and teachers in B.C. and failed.

They implored their colleagues to recognize the myriad of legal opinions from some of Canada's brightest legal minds, and the opinion of the British Columbia Civil Liberties Association, yes, even that bastion of liberal thinking, all of whom supported Trinity Western's position.

There is an expression that is common amongst lawyers: "if the facts are against you, argue the law; if the law is against you, argue the facts".

It seems that many of B.C.'s lawyers embraced the well-spun facts, and ignored the law.